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PUBLIC LAW HOARD No. 4381: CASE No 14
HROIHMMD OF MAINrTNANCE OF MAY EMPLOYEES
V.
BLUMM491M NO.1OEERN RAILROAD
' OF
'"ihe Company did not prove Mr. Sylvia guilty of
Rule G. This Investigation was not fair and impar
tial.
This Claim is for pay for all lost time, returned to
work immediately (sic), full pmootional opportunity
and removal. of this Investigation fry M^. Sylvia's
personal records.
FIlJDITFGS'
The threshold issue... does the, waiver signed by Mr. Randal Sylvia
bar the Organization fmn appealing the claim... must be decided in favor
of the Organization. The Organization has the right and
the duty
to
police the Agreements to which it is a party. The Organization must
assure that individual settlements do not adversely affect collective
riots. it is not sufficient that Mr. Sylvia discussed signing the
waiver with the organization. The Organization, as the collective
representative, must retain the riot to pursue the matter if it believes
Mr. Sylvia 's waiver of riots is wrong. The duties associated with fair
representation require the organization to consider and to reconcile
individual and collective interests. There is no evidence in this case
that the organization acted in an arbitrary or capricious or discriminatory manner by deciding to go forward with the appeal.
The Carrier has established probable cause for the request that Mr.
Sylvia submit to the urinalysis. Therefore, the Carrier did not engage
in randan testing. The carrier's officers had sufficient reasons to
believe that the report of usetof marijuana by the Claimant during a
lunch period was reliable. Additionally, the close observation of Mr.
Sylvia by two carrier officers, over a period of time, provided sufficient indications that Mr. Sylvia might be under the influence of a
prohibited substance.'
The test results of Mr. Sylvia's urinalysis indicated that at the
time he underwent the test, he had in excess of 440 nanagtams of marijuana in his system. The results of the emit test were confirmed by a,,.. .
y35tmy
thin-layer chromatography test. Given the level of nanagrams of marijuana in Mr. Sylvia's system and the confirmation of the test results,
there is substantial evidence frr~a
which
to conclude that Pr. Sylvia
Violated Rule G (in effect in 1985). Mr. Sylvia had substantial marijuana in his system while he was on duty or'bubject to duty.
The investigation was not defective, as claimed by the Drganization,
because the Carrier did not produce the co-worker informant as a witness.
'ihe basis far disciplinary action taken
against Mr. Sylvia was the test
results, not the co-workers information. No important due process
benefit would have accrued to Mr. Sylvia by having an qty to
cross-examine the informant. Fuxt:harmre, the program to bring forth
information about the use of controlled substances and alcohol. by
esployees on duty or subject to duty could be severely handicapped by
requiring the informant to appear.
The record of this case contains no procedural defects that would
justify setting aside the d
iscipline. 7n his testimrmy, Mr. Maze was not
serving as an expert witness, nor did he claim to be an expert witness.
Rather, he related information made available to him about the test
results. Accordingly, appropriate weight bas been assigned to his
statements. The test results were made part of the record, and were
considered in reaching a decision in this matter. Finally, the record is
clear that Mr. Sylvia voluntarily submitted to the urinalysis: he had the
option to refuse.
Claim denied
Ronald L. Miller
Chairman and Neutral Member
A/-
t-uc
/'-
Maxine M. Timberman 'tarl
.~
tsen
Carrier Member Organization Member
DISSFNTING ( SEE ATTACHED
' 2a~'ca.~,
r~g
Date
q38i-iLi
EMPLOYEE MEMBER'S DISSENT
While concurring with the majority decision that the Organization
had the right to pursue this claim as part of its right and duty to police the
Agreement, the Organization respectfully but firmly dissents from the
ma Jority's conclusion that the Carrier was not reqired to produce the alleged
informant as a witness at the hearing and from the conclusion that Mr. Sylvia
had the option to refuse urinalysis. If the Carrier is not required to
produce the informant as a witness, the Carrier then acquires the ability to
allege the receipt of a report by an anonymous informant, whether or not such
report did occur, as a basis for any urinalysis test. The Carrier thereby de
facto acquires the ability to engage in random testing.
Regarding Mr. Sylvia's alleged right to refuse the urinalysis
test, the evidence of record shows that under Company policy had Mr. Sylvia
refused to submit to urinalysis testing, he would have been charged with
insubordination, a charge which customarily carries a penalty of dismissal.
In effect, Mr. Sylvia was required to submit to urinalysis test under pain of
dismissal for refusal to do so. The Organization avers that submission to
urinalysis testing on pain of dismissal for refusing to do so is clearly not
voluntary..
Karl Knutsen
' Employee Member
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